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No, you can’t. Under Sec. 52.12(2)(e) of the BC Employment Standards Act, an employee stuck outside the province and can’t return to BC due to travel restrictions is entitled to unpaid COVID-19. Sec. 52.12(3) specifies that the leave last for as long as the employee remains stuck outside BC. I’ve copied the relevant provisions below. All you can really do now is keep trying to contact the employee and find out what her intentions are. Does she plan to come back? If not, you may be able to terminate her employment.
Final point: The answer might be different if your company is federally regulated and not subject to BC ESA. Hope that helps. GlennCOVID-19-related leave
52.12 ((2)An employee who requests leave under this section is entitled to unpaid leave for the period described in subsection (3) if, in relation to COVID-19, any of the following applies:
(e)the employee is outside the province and cannot return to British Columbia because of travel or border restrictions;
(3)An employee is entitled to leave under this section for as long as a circumstance described in subsection (2) applies to the employee.A belated Thank You. I missed the Quebec June 1 increase, too. Got them all updated up to Oct. 1. New piece slated to go up next week. Thanks again for the heads-up.
in reply to: Answer for Employers, Return to work Covid-19 #87237Try this. https://hrinsider.ca/covid-19-workplace-re-opening-plan-template/ and this https://hrinsider.ca/covid-19-re-opening-how-to-create-an-exposure-control-plan/ If it’s not what you need or you want additional stuff, let me know and I’ll track it down for you. glennd@bongarde.com
in reply to: Answer for Masks in the workplace – Covid-19 #87236We’re in the process of creating such a policy. Here’s a pretty good model you can use in the meantime, though. https://www.ehs.washington.edu/system/files/resources/COVID-19-face-cover-policy.pdf Thanks for the Q and hope this helps. Glenn
in reply to: Answer for ltd #87235It’s hard to answer that Q without a little more context. For example, requiring employees to apply for disability and other kinds of benefits might be acceptable as part of an employer insurance or health plan. On the other hand, an employer can’t force a disabled employee to retire and apply for LTD instead of working. Pls. provide a bit more detail or send me a note at glennd@bongarde.com if you want to talk directly. Thx. Glenn
in reply to: Answer for Resignation Letter #87234Employment standards laws require employees to provide notice of termination but don’t specify that it must be in writing. But you still can and I think it’s a good idea to require written notification, and many companies do it for just the reasons you say. I’d also make written notice a requirement of the employment contract. This gives you legal grounds to enforce. As a practical matter, though, it’s generally not the kind of thing you’d sue over, unless the employee is pretty high-ranking. But in a more elaborate case, being able to point to an employee’s contract violation is bound to help your case to some degree. Hope that helps. Glenn
I am SO sorry!! A. That the link is broken; and B. that it took so long to respond. If this ever happens again, email me directly at glennd@bongarde.com or call me at 203 984-9433. The link works OK for me but here’s a copy of the policy just in case.
ATTENDANCE MANAGEMENT POLICY (BRITISH COLUMBIA)HR managers in any part of the country can adapt this Model Policy for use at their own
workplace.
Policy Statement
ABC Company expects employees to be punctual, present at the designated work site—whether on-site,
off-site or virtual—and actively engaged in work activities associated with their jobs during designated
work hours. Unexcused failure to be present, punctual and actively engaged is a violation of the
employment contract, disruptive and harmful to productivity and morale. However, while such conduct
is grounds for discipline and termination, ABC Company believes that attendance problems can be
corrected constructively and without resort to disciplinary action and is committed to ensuring that
employees with prior attendance problems are confronted with their transgressions, allowed to provide
an explanation and afforded a full and fair opportunity based on the individual circumstances involved
to improve their attendance on a non-disciplinary basis via an Attendance Management Program.
Purpose
The purpose of this policy is to establish the ABC Company Attendance Management Program (AMP).
Scope
The AMP and this policy apply to all full-time, part-time and contract employees of ABC Company,
including those who work off site or virtually and flexible hours of work.
Definitions
For the purposes of this policy:
a. Culpable Absence or Absenteeism means failure to be present for work as a result of factors within
the employee’s control, e.g., failure to notify, absence without leave, abuse of leave and arriving late or
leaving early without notification or excuse. Culpable absenteeism may be grounds for discipline up to
and including termination in accordance with the terms of the AMP and this policy.
b. Non-Culpable Absence or Absenteeism means failure to be present for work due to factors over which
an employee has little or no control including but not limited to
Physical or mental illness, injury, and/or mental conditions including those constituting disabilities for
which accommodation is required under the BC Human Rights Code;
Family responsibilities including those for which accommodation is required under said Human Rights
Code;
Unpaid leaves to which employees are entitled under the BC Employment Standards Act, including:
Maternity leave;
Parental leave;
Sick leave;
Military reservist leave;
Bereavement leave; and
Compassionate and family care leave;
Other leaves and absences to which employees are entitled under the terms of their collective
agreement or individual employment contract.c. Attendance Standards means the average number of absences and/or rate of attendance over the
course of a year, as determined by the ABC Company department to serve as an attendance standard
for the employee’s particular department or position. Culpable and non-culpable absences will be
incorporated into separate attendance standards.
d. AMP Review means review of employees who fail to meet the attendance standard established by
their department, including with regard to both culpable and non-culpable absences. AMP review will
determine, among other things, if the absence was culpable or non-culpable and whether it violated the
applicable attendance standard.Employee Accountability for Attendance
An employee’s failure to be punctual, present at the designated work site—whether on-site, off-site or
virtual—and actively engaged in work activities associated with their jobs during designated work hours
may be grounds for discipline and termination. This includes both:
Culpable absenteeism; and
Non-culpable absenteeism where:
The absence frustrates the employee’s contract; and
Discipline can be imposed in a way that doesn’t violate the employee’s right to accommodations.
Employee Accommodation RightsNotwithstanding the above, ABC Company recognizes that non-culpable absenteeism may be the result
of disabilities or family responsibilities for which accommodations are required under human rights and
other applicable laws. ABC Company is committed to carrying out this AMP policy in a way that is
mindful and respectful to these accommodation rights, including but not limited to with regard to
necessary modifications of AMP standards and procedures to the point of undue hardship.a. ABC Company will establish a standard number or rate for both culpable and non-culpable absences
for each month or calendar year using appropriate Company and departmental attendance data.
Establishing attendance standards is necessary to help the Company ensure organizational operational
effectiveness by ensuring that employees are fulfilling the roles they were hired to perform.
b. ABC Company will track and record all employee absences, including culpable and non-culpable
absences and absences with and without prior permission. Tracking includes identification of absences,
absence time and date, reasons provided, if any, and supporting information such as a doctor’s note.
Absences tracked include full and partial day absences such as the result of arriving late and/or leaving
without permission during the shift.
c. ABC Company will use attendance data to identify employees who exceed standard rates of
absenteeism. Such employees may be subject to AMP review.
d. ABC Company will take steps to ensure that all employees are informed of and understand that
attendance at work in a time and place expected by the organization, unless explicitly stated otherwise,
is a job requirement of the job and that failure to comply may result indiscipline. Employees are
required to provide notice of an absence as soon as possible, before or as soon as possible after, they
are/will be absent from work for any reason.
e. AMP review will be triggered:
By any culpable absences; and
When the number of non-culpable absences approaches the standard for non-culpable absences for the
employee’s department.
f. AMP review will consider, among other things, the number or rate of absences, reasons for the
absence and the employee’s work contributions and employment record. If AMP review determines that
an absence was culpable or that the number of non-culpable absences has exceeded the standard for a
department, ABC Company will take appropriate steps to address the address the problem via
contacting, notifying and communicating with the employee.
i. Status Determination: If reasons for the absence are unknown, ABC Company will first
take steps to determine why the employee was absence. If the absence is a result of a
health concern including illness or injury, the Company will request that the employee
furnish information to support the facts, including a medical note or prognosis containing
information on the prognosis for returning to work. If the employee is not able to return
to work immediately, the Company will maintain contact with the employee during the
absence and monitor the situation and let the employee know of its concerns over the
absence and the employee’s situation. Extended absences from work may be considered
grounds for discipline or dismissal if the absence frustrates the work contract and the
discipline does not violate the employee’s accommodation or other rights.
ii Accommodation Review: As part of AMP review, ABC Company will consider whether the
cause for the absences or absences is a disability or family responsibility need. If so, the
employee will be entitled to accommodations in accordance with human rights laws and
the Company will work with the employee and his/her representatives, including medical
providers, to determine appropriate and reasonable options for accommodation.
Accommodation will be provided to the point of undue hardship.
g. Response to a culpable absence: If it is determined that an employee’s failure to meet attendance
standards was a result of one or more culpable absences, ABC Company will treat the situation as a
disciplinary matter subject to ABC Company’s progressive disciplinary policy and applicable employment
contracts and collective agreements.
i. If the employee’s past attendance record includes extended or patterns of absenteeism
(including repeated tardiness) or is otherwise unacceptable, the employee may be given
the opportunity to demonstrate that he/she is capable of regular attendance in the future
through the progressive disciplinary process.
ii. If the employee has lied, deceived or provided false information regarding reasons for
absence, he/she may be subject to termination for cause.
h. Response to a non-culpable absence: If it is determined that an employee’s failure to meet
attendance standards is a result of non-culpable absence, ABC Company will treat the situation as a nondisciplinary attendance matter subject to the process set out in policy Section 8 below.
Employees will be subject to disciplinary procedures up to and included dismissal if: (x) They are absent
repeatedly or for an extended period and, as a result, are not performing the role they were hired to
perform; (y) Accommodation is not appropriate, feasible or would be ineffective; and (z) The absences
are not substantiated.Steps to Address Absenteeism
Although ABC Company reserves the right to impose discipline, the purpose of this AMP Policy is to
resolve attendance management issues without resorting to discipline. To that end, ABC Company will
carry out the following process:
a. Initial Meeting: When an attendance management issue has been identified, ABC Company will hold
an informal interview with the employee to: (a). Notify the employee of its attendance concerns; (b)
Explain the impact of absences on work operations; (c) Offer the employee an opportunity to explain the
absences; (d) Set clear and specific expectations and deadlines for attendance improvements; and (e)
Identify resources available to help the employee.
ABC Company recognizes its duty to make reasonable accommodations for absences that are the result
of a disability or family responsibility, to the point of undue hardship. Accordingly, during the initial
meeting, ABC Company will seek to determine whether the absence is the result of a disability or family
responsibility requiring accommodation. If the employee reports that such is the case, ABC Company will
request the employee to provide confirmation. Once confirmation is obtained, ABC Company will treat
the disability or family obligation as a mitigating factor and work with the employee to determine
appropriate accommodations, including but not limited to in regard to attendance improvement
expectations and deadlines, based on an assessment of the employee’s circumstances, capabilities and
needs. If the employee is unable or unwilling to participate in this meeting or cooperate in the
accommodation process, ABC Company will send him/her a non-disciplinary letter outlining its concerns
regarding the employee’s absenteeism.
b. Formal Meeting 1: In the event the employee’s attendance fails to improve within the deadlines
stated in the initial meeting, ABC Company will hold a formal meeting with and issue a formal letter to
the employee to: (a) Notify the employee of its attendance concerns; (b). Explain how his/her absences
impact work operations; (c) Set expectations and deadlines for improved attendance; (d) Offer the
employee an opportunity to explain the absences; (e) Identify resources available to help the employee;
and (f). Set a course of action to help the employee meet the attendance improvement goals established
in the initial meeting. Absenteeism due to disability or family responsibility will be treated as a
mitigating factor and appropriate accommodations will be made, including but not limited to in regard
to improvement expectations and deadlines.
c. Formal Meeting 2: In the event the employee’s attendance fails to improve within the deadlines
stated in the first formal meeting, ABC Company will hold a formal meeting with and issue a formal
letter to the employee to: (a) Notify the employee of its attendance concerns and that his/her poor
attendance is causing a problem and is unacceptable; (b) Explain how his/her absences impact work
operations; (c) Set expectations and deadlines for improved attendance; (d) Offer the employee an
opportunity to explain the absences; (e) Identify resources available to help the employee; and (f) Set a
course of action to help the employee meet the attendance improvement goals established.
Absenteeism due to disability or family responsibility will be treated as a mitigating factor and
appropriate accommodations will be made, including but not limited to in regard to improvement
expectations and deadlines.
d. Formal Meeting 3: In the event the employee’s attendance fails to improve within the deadlines
stated in the second formal meeting, ABC Company will hold a third and final formal meeting with and
issue a third and final formal letter to the employee to: (a) Reiterate its attendance concerns and the
expectations and deadlines for improved attendance; (b) Make it clear that the employee has failed to
meet the agreed to improvement expectations and deadlines; and (c) State a new deadline by which you
expect the employee to meet the attendance improvement goals; and (d) Indicate that failure to meet
the new deadline may result in discipline.
TerminationFailure of employees to meet the attendance standards set out in this policy, including the failure to
participate or cooperate with the non-disciplinary processes for correcting attendance problems set
forth above, shall be cause for discipline up to and including termination.in reply to: Answer for Vacation question #87231Here’s Alan’s response. Feel free to loop back with me if u need further help. glennd@bongarde.com
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There’s really two parts to this question, one asked and one not.
The asked question is about the balance carried forward for the vacation year, while the person was off on sick leave. From the 15 days the person is entitled to, I take this means 3 weeks. What I don’t know is the length of the person’s service. If this is over 5 years, then any days remaining have to be carried forward. If the person’s service is less than 5 years, then only the portion remaining that relates to the first 2 weeks must be carried forward.
The implied question is whether the person is entitled to a full 15 vacation days for the current year. As of 2017, a person’s vacation entitlement in Ontario can not be reduced for periods of inactive service.in reply to: Answer for Vacation question #87230Good Q. I’m going to forward it to our payroll expert, Alan McEwen, and will let you know as soon as I hear back. He’s usually pretty fast–expect he’ll respond by end of the day.
I’m sorry. I don’t understand the question. Can u please clarify and I’ll shoot it over to our payroll guy ASAP. Also need to know which jurisdiction you’re in.
in reply to: Answer for COVID-19 and attendance issues #87228Absolutely you can continue to discipline employees for culpable absences. Basically, no need to change your policy due to COVID-19. All you need to do is what you’ve already done–recognize that COVID-19 absences, like any illness-related absences, are NONculpable and apply your normal rules. BTW, required self-isolation due to COVID-19 exposure is also nonculpable absence, even if the employee doesn’t have actual symptoms. Bottom line, as long as you follow your normal policy and treat everybody required under public health guidelines to be absent due to COVID as nonculpable, you’ll be fine. Hope that helps. Glenn
in reply to: Answer for Employee off due to COVID #87227Great Q. What you’re dealing with is a leave of absence situation rather than a work refusal. The basic Q: Is he or is he not entitled to be on leave under BC ESA or applicable employment contracts or collective agreements if you provide leave more generous than ESA minimums.
And based on what u describe, this employee IS NOT ELIGIBLE for the new BC emergency COVID-19 leave because he hasn’t been diagnosed with COVID, quarantined, asked to self-isolate, told by his employer not to work to prevent exposure to others in the workplace, caring for family member with COVID or affected by school or daycare closure or stranded outside BC due to travel restrictions.) As a result, I suggest just treating this as you would have any other employee not coming back from leave before the pandemic and take COVID-19 out of the equation. The simple Q: Does he or doesn’t he have entitlement to
The other key point is that this is NOT a work refusal, at least not yet. The employee does have the right to invoke his OHS work refusal rights if he’s really scared. But to do that, he has to actually come to work and initiate the refusal process by notifying the company of his refusal. If that happens, an investigation would be necessary to determine whether the employee is in danger and the refusal is reasonable. Based on what u tell me about the effectiveness of your safety measures, his refusal would probably not be upheld. He’d have a better chance if he was the one with the susceptibility; still, the wife’s susceptibility could make the refusal justified. U just never know how refusals will turn out. But the bottom line is that, at this point, there is no refusal and this is all speculation.
Parting words: If he’s used up his leave entitlement, he’s subject to discipline. But if he does come back, he can try a work refusal. Great Q. Sorry for the long answer. Glenn
Kelly: Alan is good to go and should be able to answer your Qs. You can contact him directly at the following:
Alan R. McEwen
Alan McEwen & Associates
PO Box 144 Station Main, Qualicum Beach, BC V9K 1S7
250-228-5280 in the Pacific time zone
https://alanrmcewen.comI hear the urgency and I’m trying to figure out the best way to help you. The problem is that your Qs may require payroll expertise that my advisor, Alan McEwen, is way better suited to provide. I’ve forwarded your Q directly to him and asked if he would be willing to speak to u directly. I’m waiting for his response. If he’s not available, I’ll set up a time to talk to you tomorrow and see what I can do to help you out. Will circle back with u as soon as I hear from Alan. Thx for your patience and be assured that one way or another we’ll get you an answer in the next 24 to 48 hours. Glenn. glennd@bongarde.com
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